Introduction
The purpose of this brief article is to clarify when an attorney-client relationship exists, and what duties an attorney has to a client. This article will conclude with a discussion of when confidential communications with an attorney are privileged—and when communications may not be. This article will cite the Idaho rules of professional conduct, evidence, and civil procedure, understanding that these rules are similar to other states. Although providing information, this article does not constitute legal advice. If you have a specific matter, issue, or question regarding the attorney-client relationship, consult your attorney to see how these rules apply to you.
When does the attorney-client relationship begin?
There are no magic words that mark the beginning of the attorney-client relationship. Although meeting with an attorney and signing a fee agreement is the most common way to begin the relationship, this level of formality is not required. If an attorney agrees to provide legal assistance, or engages in conduct that can be reasonably seen as agreeing to provide legal assistance, an attorney-client relationship can be construed to exist.[1]
Where, on the other hand, the client simply consults with the attorney, the relationship terminates at the end of the consultation unless the attorney agrees to continue the relationship or take on a specific matter for the client.[2] If the attorney agrees to undertake the specific matter, the attorney-client relationship ends when that matter is resolved.[3] When an attorney agrees to handle any matters the client may have (present or future), the relationship continues until the attorney or client ends the relationship.[4]
What is its nature?
Once an attorney-client relationship is established, the attorney must fulfill various duties to the client. First among these is the duty to act solely in the client’s best interest. The attorney-client relationship “is one of the highest character. It is a fiduciary relationship binding the attorney with the strictest accountability and fidelity to his client’s interest.”[5]
An attorney is considered the agent of the client.[6] “Loyalty to his trust is the first duty which an agent owes to his principal. It follows . . . that the agent must not put himself in such a relationship that his interests become antagonistic to those of his principal.”[7] In other words, the attorney must carefully avoid conflicts of interest. This is why attorneys typically do a “conflicts check” before entering an agreement with a client.[8]
Other duties arise from the Rules of Professional Conduct. Some of the most important of these duties are summarized here. Rule 1.1 of the Idaho Rules of Professional Conduct (I.R.P.C.) requires attorneys to provide competent representation to clients. “Competent representation” is representation with “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Moreover, Rule 1.3 requires attorneys to represent clients with reasonable diligence and promptness.
Attorneys must also follow the client’s wishes regarding the goals of the representation and must consult the client on how to pursue these goals. For example, attorneys must abide by a client’s decision on whether to settle a matter.[9] And attorneys are required to promptly communicate with the client about any circumstances where the client’s informed consent is required, and must keep clients reasonably informed about the status of their matters.[10]
Confidentiality
One of an attorney’s most crucial duties is to keep client matters confidential. Attorneys cannot reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure falls under a list of exceptions (e.g., prevention of crime, prevention of death or substantial bodily harm, mitigation of financial loss from crime for which the client has used the attorney’s services).[11] This duty does not simply mean an attorney cannot choose to reveal client information—it also requires attorneys to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential client information.[12] The attorney’s duty of confidentiality continues after the attorney-client relationship is over.[13]
A client’s confidential information is also protected by both the attorney-client privilege and the work product doctrine. The attorney-client privilege is a rule of evidence—specifically, it is Rule 502 in the Idaho Rules of Evidence (I.R.E.). Under this rule, the client has a privilege: (1) to refuse to disclose; and (2) to prevent others from disclosing confidential communications made for the purpose of obtaining legal services. Rule 502(b) lists all of the situations in which the privilege applies, but the most important to remember is that the privilege will apply to communications between a client and an attorney made for the purpose of obtaining legal services.
That the client holds the privilege means that only the client can choose to assert the privilege, or waive it. The attorney cannot reveal privileged communications without the client’s consent. Nor can the client be forced to testify about privileged communications with his/her attorney. The purpose of the attorney-client privilege is to promote open communication between the attorney and the client. When the client can confide in the attorney about all of the facts of a situation, the attorney is able to provide more accurate and complete advice.
Exceptions
As with the confidentiality rule, there are some exceptions to the attorney-client privilege. Among other exceptions, there is no privilege for communications made to further a crime or fraud or for communications about an attested document to which the lawyer is an attesting witness (such as a will).[14] The client or the attorney may be compelled to disclose or testify about such communications.
A crucial aspect to note is the impact of voluntary disclosure. A client waives the privileged status of communications made to or from an attorney if the client voluntarily discloses or consents to disclosure of “any significant part of the matter or communication.”[15] For example, if a client receives a letter from an attorney offering a legal opinion or legal advice and voluntarily discloses the letter to a third party, the privileged status of that letter is waived. The client or the attorney could be required to testify about the contents of the letter if a lawsuit arose later.
Another protection for attorney-client communications is the “work product doctrine.” This is found in the Idaho Rules of Civil Procedure (I.R.C.P.), and it applies to the discovery process during a lawsuit. Under the work product doctrine, documents or other tangible things that a party would otherwise be required to produce in the discovery process are exempt from discovery if they were prepared in anticipation of litigation or for trial by or for a party or a party’s representative (including an attorney). This exemption applies in all cases unless the party seeking discovery of the documents or materials shows: (1) a substantial need for the materials in preparing their case; and (2) that the party cannot obtain the documents or materials by other means without undue hardship.[16] Even if the court orders discovery of certain materials, it has to protect against disclosure of an attorney’s legal theories or mental impressions about the case, and must also protect communications between the attorney and client.[17]
Hopefully this overview has helped to clarify some of the key rules surrounding the attorney-client relationship. If you have further questions, you should not hesitate to ask the attorney you are considering hiring.
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At Timely Contract we have local real estate attorneys who have experience throughout Idaho, including: Boise, Post Falls, Coeur d’Alene, Lewiston, Moscow, and Sandpoint.
We also have local real estate attorneys who have experience throughout Montana, including: Missoula, Billings, Bozeman, and Kalispell.
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[1] Berry v. McFarland, 153 Idaho 5, 278 P.3d 407, 411 (2012).
[2] Id.
[3] Id.
[4] Id.
[5] Matter of Lutz, 100 Idaho 45, 49, 592 P.2d 1362, 1366 (1979); citing In re Carter, 59 Idaho 547, 86 P.2d 162 (1938).
[6] Caballero v. Wikse, 140 Idaho 329, 332, 92 P.3d 1076, 1079 (2004).
[7] Jensen v. Sidney Stevens Implement Co., 36 Idaho 348, 353, 210 P. 1003, 1005 (1922).
[8] This principle is also reflected in Rule 1.7 of the Idaho Rules of Professional Conduct, which prohibits attorneys from taking on representation involving conflicts of interest.
[9] I.R.P.C. 1.2(a).
[10] I.R.P.C. 1.4(a).
[11] I.R.P.C. (a)-(b).
[12] I.R.P.C. (c).
[13] I.R.P.C. (c)(2).
[14] I.R.E. 502(d)(1), (4).
[15] I.R.E. 510.
[16] I.R.C.P. 26(b)(3).
[17] Id.
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